










\:5 "' :. s^ '% 



<?.' 











< 









'>' ,V AW ^^//77 o v/^ r^ 




SvT, 



.^' --^ ^yjf^: j'-'^ 




t^o* 








,% ^„ 







.0' 



<^» 











*' .-i.-^'- 







^^-v 

V V 




^^.^^^m^f- ^0^^ 






<?. 









-n^o^ 



,^ 



Hq. 








^-^ '^'^'.^^ 



Ao^ 






.^ 










> 











■^ -^^0^ 



c 



0^ 




■^ * • n^ - -^ 



^oV" 



4 O 




^ rmm- -^^ :mM^ ^"^^ ^JEfe: "^^^ 






-^<^'^' 




,v : ^^r-^-' ^h,". >r .<^ : 



-^P'/ >"'' "^ °^y'^w.' J'' '-"-^^ '-M^s ** -^^ -.^ 







^\ 



<> 



V 








"•r^^ 






:^; 



: J 









-- a'^ 









r-^^ 




A V ~,^ ' ' ' A"^ <?*■ ' o » o - -^ ' O 



*-^.>^ -i^sfA'-, v> 



i 



^<^ 



v^ 



35Tn CoNGRB^, I HOUSE OF REPRESENTATIVES. ( Report 
Ist Se^ision. \ ) No. 290. 



CHEROKEE RESERVATIONS. 

[To accompany Bill H. R. No. 270.] 



April 17, 1858. 



Mr. Giiee\'wood, from the Committee ou Iiuliaa AfFairs, made the 

following 

REPORT. 

2 he Committee on Indian Affairs^ to ivhom were referred sundry memo- 
rials from citizens of Tennessee, in rclaiion to the reservations under 
the treaties of 1817 aud 1819 with the Cherokees, have considered 
the same, and report : 

V>y tlie ei^'htli article of tlie treaty of 1817 with the Cherokees, 
(U. S. Statutes at Large, vol. 7, page 156,) it was provided as 
follows : 

" And to each and every head of any Indian family residing on the 
east side of tlie Mississippi river, on the lands that are now, or laay 
hereafter be, surrendered to the United States, the United States do 
agree to give a reservation of six hundred and forty acres of land, in 
a 8(iuare, to include their improvements, which are to be as near the 
centre thereof as practicable, in which they will have a life estate, 
with a reversion in fee simple to their children, reserving to the widow 
her dower, the register of whose names is to be filed in the office of 
the Cherokee agent, which shall be kept open till the census is taken, 
as stipulated in the third article of this treaty : Provided, That if any 
of the heads of families for whom reservations may be made should 
remove therefrom, then, in that case, the right to revert to the United 
States : And provided, further, That the land which may be reserved 
under this article be deducted from the amount which has been ceded 
under the first and second articles of this treaty." 

In the treaty of 1819 with the Cherokees, (U. S. Statutes at Large, 
vol. 7, page 195,) the United States, by the second article, " agree to 
allow a reservation of six hundred and forty acres to each head of 
any Indian family residing within the ceded territory, those enrolled 
for the Arkansas excepted, who choose to become citizens of the United 
States, in the manner stipulated in said treaty" — that of 1817. 

Much imj)ortance has been heretofore placed upon the first proviso 
by those claiming the right to give to it its true meaning and inter- 
pretation, and particularly as to the kind of removal intended for heads 
of families, to make by the words "remove therefrom," in order that 






CHEROKEE RESEEVATIONS. 



the fee simple of the children might ^'revert " to the United States ; 
for removal from these reservations by the heads of families, whether 
east or west, or anywhere at all, has been held a voluntary abandon- 
ment, and consequently, not only destroyed the " life estate, but also 
carried with it the ^\fee simple" of the children ; and thus, for the 
want of a proper and correct understanding by those adjudicating of 
the relative meaning of the words "remove therefrom," originated all 
the difficulty to a final settlen)ent of these claims. 

"With a view, therefore, of settling the question once for all, as to 
the kind of removal required in the proviso to work a reversion of tlie 
whole estate to the United Spates, was a removal by the heads of fami- 
lies west of the Mississippi river and settlement upon vacant lands 
belonging to the United States. And then, to make the reversion 
complete, the removal must have taken place previous to the expira- 
tion of the time fixed in the third article for the completion of the 
census. It was also the duty of such heads of families electing to 
become citizens as required, and who afterwards determining to aban- 
don their reservations, first to have declared that intention to the 
Cherokee agent, whose duty it was to make an entry in the register 
opposite such names " lemoved ivest." He was created judge by the 
eighth article, and the only competent judge, to determine who were 
heads of families and who were not. The register was kept by him, 
in which the names were recorded, the number of families and their 
locations, thus showing at the time what was understood to be the kind 
of removal it took to work a reversionary title of said reservations. 
This register, too, was only to be kept open until the time expii ed for 
the completion of the census, after which no act of the heads of families 
could destroy the "/ee simple" of the children^ and the register must 
be taken as final and conclusive on these points. In other words, there 
is no going behind the record. The original being now on file in the 
office of the Commissioner of Indian Affairs, your committee have ex- 
amined the same and find the foregoing facts fully confirmed by it. 

In this way, and this way only, could such reversion have taken 
place, the whole scope of the treaty of 1817 being an exchange of 
land ''acre for acre." — (See article 5.) And to pretend that a rever- 
sion of said reservations to the United States could have taken place 
in any other manner, would be to deny the plain and manifest inten- 
tion of the parties to the treaty. Furthermore, it must not be for- 
gotten that the Cherokee nation was proprietor of the lands east of the 
Mississippi, which they proposed to exchange for lands west of that 
river, where the United States w^as proprietor. The term '^revert" 
cannot, therefore, be taken in any other sense than simply a fair ex- 
change of land between the parties. This view is further sustained 
by the second proviso : "That the land which may be reserved under 
this article be deducted from the amount which has been ceded under 
the first and second articles of this treaty." 

In an ojiinion of Mr. Attorney General Butler, of May the 14th, 
1839, upon the rights of the children, he says : 

"The children of reservees under the eighth article of the treaty of 
1817 were entitled, by the express words of that article, to reversion 
iny'ee simple. The father having only a life estate, the estate of the 



CHEROKEE KE8ERVATI0NS. 3 

c'liiMren coul'l not lie diverted by any act of the ancestor ; and if they 
liHve been oldiged by the laws of the States to abandon their rever- 
sionary rights, or to purchase them from the States, they will be en- 
titled to compensation." — (Opinions of Attorneys General, p. vol. — .) 

In suj)port of the foregoing views and facts, will be found the 
further significant fact, that the census stipulated to be taken, in the 
tliird article, of all the Chercdcees both east and west, in the month of 
June, 1818, was not taken at any time — the United States having 
failed to make the appointment of agents; and the Cherokee nation 
east of the Mississip|)i foreseeing wluJt would doubtless have happened 
to their nationality liy permitting the door to be kept open longer lor 
removal, and the taking of reservations under the treaty of 1817, ap- 
jiointed a (hdegation who visited Washingtim city and negotiated he 
treaty ot 1819. For what purpose, the preamble and several articles 
of that treaty will show. 

The preamble sets forth : '* Whereas a greater part of the Cherokee 
nation have expressed an earnest desire to remain on this (east) side 
of the Mississippi, and being desirous, in order to commence those 
measures which they deem necessary to the civilization and [ireserva- 
tion of their nation, that the treaty between the United States and 
them, signed the 8th of July, 1817, might, without further "lelay, 
or the trouble or expense of taking the census as stipulated in the 
said treaty, be finally adjusted, have oflered to cede to the United 
States," iV'c. 

The first part of article one specifies the boundaries of the territory 
ceded by the Cherokee nation to the United States ; and the second part 
of said article expresses the purpose for which it was ceded, in these 
words: " And it is further understood and agreed by the said parties 
that the lands hereliy ceded by the Cherokees are in full satisfaction 
of all claims which the United States have on them, on account 
of the cession to a part of their nation lulio have, or may hereafter 
emigrate to the Arkansas ; and ihla treaty is a final adjustment of 
thato^ the 8th July, 1817." 

Article two, already quoted in the first part of this report, gives a 
reservation of 040 acres to each head of any Indian family residing 
within the ce(kd territory, those enrolled for the Arkansas excepted, 
who choose to become citizens of the United States, in the manner 
stipulated in said treaty. 

After the negotiation of this treaty, and the granting of reserva- 
tions upon the lands ceded by it, in the manner stipulated by the 
eighth article of the treaty of 1817, and also ceding to the United 
States a suiHcient quantity of land in full satisfaction of all claims 
which the United States had on the Cherokees, on account of those 
who had or might thereafter emigrate to Arkansas, which treaty was 
a, final adjustment of that of 1817; and tneu, after all these treaty 
guarantees, to say that any kind of 'Removal therefrom," by the 
heads of families, would or coidd destroy the "fee simple" of the 
children to any of these reservations, and thereby cause their rights 
to the same to "revert" to the United States, would be to establish a 
precedent unexampled in the history of civil jurisprudence. 

Should your committee be in error as to the foregoing conclusions, 



lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllli^———l nnitn.iiiwi 



4 CHEROKEE RESERVATIONS. 

they desire to present another view of this case, in order to ascertain 
what they conceive to be the law that should govern in the settlement 
of the rights of parties growing out of those treaties. 

The eighth article of the treaty of 1817 did not originate with the 
commissioners who negotiated it, but was dictated in the instructions 
from the Secretary of War, under which they acted, and which may 
be found in the American State Papers, Indian Affairs, vol. 9, page 
142. The following extract is made from those instructions : 

" Those individuals (and they are understood to be numerous) who 
have acquired property, and wish to remain, and who experience the 
daily increasing embarrassments and difficulties arising from tlie want 
of proper laws for the protection of that projjcrty, will, it is believed, 
find sufficient inducements for the exchange, in the benefits which 
they will derive from the enjoyment of the rights and immunities of 
a citizen of the United States, and in the protection of the laws of the 
particular State or Territory in which they may reside ; and in the 
assignment of a section of six hundred and forty acres of land, (and 
more, if, in particular instances, it may be deemed necessary,) to the 
head of each family, in which they will have a life estate, with a 
reversion in fee simple to their child or children, reserving to the 
widow her dower." 

The considerations which justify, and probably dictated the policy 
of granting a life estate only to the first takers of these reservations, 
are numerous and obvious. Among them is the fact, jthat many of 
these heads of Cherokee families were whites, who had intermarried 
with Cherokee women, so that the preservation of the right of dower 
and of the fee simple estate in reversion to the children, became a 
matter of justice, as well as of policy. 

If the words of the first proviso to the eighth article of the treaty 
of 1817 be construed to make the reversion in fee simple already 
granted absolutely to certain designated persons — namely : the chil- 
dren of heads of families taking reservations conditional upon the acts 
of the persons vested with the life estate — the proviso would be void 
for repugnancy to a grant already made, and therefore as ineffectual 
in law, as it would be unjust and wanton in sacrificing innocent 
parties. A proviso in a deed, endeavoring to vacate an absolute vested 
estate, granted or created in the earlier part of the deed, is void. 
This is not a life estate to one, with remainder in fee to his heirs ; in 
which case, by what lawyers call the rule in Shelley's case, the heirs 
would take by descent and as heirs ; and in which case, therefore, the 
first taker would be held to have the entire estate, with the power to 
dispose of it in fee. Here, the remainder is to the children, who are 
specific persons, and do not take as heirs at all. It is precisely as if 
the grant was to A for life, and, at his death, to his son B. 

It is not necessary, or even natural, however, to give to this proviso 
(added to the treaty by the commissioners) a construction, which, if 
effectual in law, would defeat the precisely defined objects of the in- 
structions UNDER WHICH THEY ACTED. A better Construction is, that it 
only made the life estate dependent upon the non-removal of the ten- 
ant of the life estate ; and the probable purpose of providing that this 
life estate should revert to the United States, was to bar any interfer- 



CHEROKEE RESERVATIONS. 5 

inj:^ rights of the States in which the lands were situated ; so as to 

• ••IT 

secure more perfectly the reversion in fee simple intended to be pro- 
vided for. 

This (juestion has been considered during the last Congress by the 
Senate's Committee on Private Land Claims, whose two reports [ac- 
companying Senate bill 275] are referred to. The question consid- 
ered by that committee related to a reservation taken by John McNary, 
and they say : 

"To liave entitled John McNary to a life estate under the said 
treaties, he must have been registered, and have com|)lied with all 
the re(iui8itions of the treaty of 1817 ; and whenever, under the treaty, 
his life estate attached, the fee simple passed to his children with the 
reservation of dower to the widow." 

In the opinion of your committee, the rights of these children are 
indestructable in law, except ]>y their own acts, and tlie faitli of tlie 
government is pledged, in a most peculiar and sacred manner, to up- 
hold them. 

By the treaties of 1817 and 1819, we acquired about four millions 
of acres from the Cherokees without money eijuivalents, giving acre 
for acre in lands on the Arkansas. In the reckoning of what we 
received, these reservations were deducted and diminished to that 
extent what we gave in return, so that they have never received any 
equivalent whatever for these reservations. 

" Tlione tuho remain may he assured of our patronage, our aid, and 
good ncighhorhood." These words, (juoted from an address to the 
Cherokees by President Jefferson, form a part of the preamble of the 
treaty of 1817, and illustrate the spirit in which it should be executed. 

The history' of these reservations, to the present time, may be 
summed up in a few words. In Georgia, where more than half of 
them were made, and in Tennessee, the tenants of the life estate have 
been obliged to succumb to the legislation of those States. Georgia 
was entitled, by the convention of 1802 with the United States, to 
claim that the latter sliouhl extinguish the Indian title within her 
limits, and on that ground resisted these reservations. Upon what 
grounds Tennessee proceeded is not so clear. The legislation of North 
Carolina was never, in terms, directed against these reservations. 
That State, however, aj)pointed commissioners to survey and sell all 
the lands acquired by tlie treaties of 1817 and 1819, omitting any 
notice of the reservations ; and as the commissioners included them 
in their surveys, and sales, titles were obtained, resting apparently 
upon the authority of the State, which conflicted with the title of the 
Indian reserves. The conflict was terminated by obtaining releases 
from the Indians holding the life estate for considerations totally inad- 
eqdate. An account of a portion of these proceedings, as well as an 
elucidation of many of the legal principles connected with these reser- 
vations, will be found in the opinions of the supreme court of North 
Carolina, in the case of Euchulah vs. Walsh. — (3 Hawks, 155.) In 
Alabama no rights of the State were ever asserted against these reser- 
vations, and they have fallen into the hands of individuals, in some 
instances, too i»robably, by violence and overreaching, and in other 



MwuuaiiomitM— — «— 



6 CHEROKEE RESEKVATJOXS. 

instances, by purchases from tlie tenants of the life estate, matle in 
ignorance of the ultimate title of their children. 

As now, by the death of the tenants of the life estate, the title of their 
children is becoming perfect, it is being asserted by suits, to the great 
alarm of the communities concerned ; and some remedial and compre- 
hensive measure seems to be called for. 

If it could be assumed that, in consequence of an adverse pressure 
upon courts and juries, the rights of these children cannot be legally 
enforced, it would be the duty this government to indemnify and 
relieve them. We owe to them something more than even exact good 
faith, because they were and are our wards. Treaties may add some- 
thing to our duties as their guardians, but cannot make those duties 
less. 

If it is assumed, on the other hand, that the rights of these chil- 
dren can be legally forced, it is urged by the memorialists, that, for 
the prevention of expensive and harassing litigation, as also for the 
relief of parties misled by a misunderstanding of the treaty of 1835 
v/ith the Cherokees, the same discretion of this government should 
interpose some measure of relief. 

In the case of Georgia, at any rate, if the rights of these reserves 
are maintained in the courts, the United States will be compelled to 
respond for the value of the property, under the convention with 
Georgia of 1802. 

The treaty of 1835 with the Cherokees (U. S. Statutes at Large 
vol. 7, p. 478) provides, in the thirteenth article, that " all such re- 
serves as were obliged by the laws of the States in which their reser- 
vations were situated to abandon the same * * * shall be deemed 
to have a just claim against the United States * * * * to the 
present value of such reservations as unimproved lands." By the 
seventeenth article, it is provided that " all the claims arising under 
or provided for in the several articles of this treaty shall be examined 
and adjudicated " by certain commissioners, whose " decision shall be 
final ;" and at the commencement of the thirteenth article, it is de- 
clared to be the intention "to make a final settlement of all the 
claims of the Cherokees for reservations granted under the former trea- 
ties." It is averred, in substance, by the memorialists that, in pur- 
chasing titles adverse to those of the Indian reserves, they believed 
that the treaty of 1835 had provided effectually and finally for these 
latter titles. Your committee are satisfied that such a belief has ex- 
tensively prevailed ; and it is apparent that the phrases of the treaty 
are calculated to produce it. The people are not to be presumed to 
have a better knowledge of private rights than those who have been 
intrusted with the responsible duty of negotiating treaties. If the 
commissioners who negotiated the treaty of 1835 were ignorant of, or 
inattentive to the indefeasible rights of the children of the Indian 
reserves under the treaties of 1817 and 1819, and undertook to make 
a "final settlement" of those reservations by provisions which, on 
their face, are ouly applicable to the tenants of the life estate, it is 
not to be wondered at that the estates in reversion, neglected and 
overlooked by officials, should be neglected and overlooked by the 
peoijle. 



BD 1.48^^^ 



CHEROKEE RESERVATIONS 7 

The (juefition is not now as to the tenants of the life estate in these 
reservations, the pjreat majority of wnum have died. If that question 
was ])resented, liowever, notliin(]j wouM stem to be more phiin and 
certain, tliat they were not parties in law, or in fact, to the treaty of 
1835 ; that their rights were in no wise concluded by it, and that they 
were not bound to submit their claims to the adjudication of any com- 
mission institnted under it The utmost which couhl be said is, and 
even tliis witli some (lualificalions, that tliose wlio did in fact receive 
a compensation, awarded l)y such a commission for the coerced abjin- 
d(jnment of reservations, are not entitled to any further redress. 

None of the children of the heads of families taking reservations, 
ever ajtplied for redress under the treaty of 1835. They were, many 
of them, not in a condition, in respect of age, to do so ; nor were they, 
any of them, within the j)rovisions of the treaty. They had not been 
compelled to abandon the reservations by the laws of the States. They 
had never Come into possession of them. Their fathers, and not them- 
selves, had been the subjects of coerced removal. In most instances 
ovi-n their riglit of possession had not matured. 

Whilst, however, the treaty of 1835, whatever popular mistakes its 
language may have caused, could, in truth, take away no rights from 
those who were not })arties to it, or wlio did not come in afterwards 
and voluntarily accept its terms, it contains proof that those who then 
administered this government conceived themselves to be bound to do 
something more for the reservees of 1817 and 1819 than to leave them 
to enforce their rights in the courts. For such of them as had been 
forced to abandon their reservations, or to purchase a secontl title to 
them from the States, this treaty of 1835 provided an indemnity for 
the life estate tenants, to be paid out of the treasury of the United 
States, and ex|)ressly declares that this indemnity is due to them 
under the treaties of 1817 and 1819, and is entirely independent of the 
new agreements entered into upon new considerations by the United 
States in 1835. 

Such, also, ajjpears to have been the view of duty acted upon here 
since 1835. In both the Congresses preceding the present one, indem- 
nities have been granted to reservees, under the treaties ot 1817 and 
1819, who liave made individual applications for redress. 

The wliole number of heads of families who took life estate reserva- 
tions under the treaties of 1817 and 1819 was three hundred and 
eleven. Your committee are not able to say in wliat proportion of the 
cases the reservations are held by titles adverse to and in derogation 
of the rights of their children, or in what proportion of the cases, by 
the death of the life estate tenants without children to succeed them, 
no parties remain to be redressed. 

Under all the circumstances, unwilling to subject these reservees to 
tiie hazards of h)sing their just rights by a sinister influence operating 
upon local tribunals, and at the same time appreciating the disastrous 
consequences to the communities concerned of the enforcement of these 
rights ; considering that they constitute, certainly in the case of the 
Georgia reservations, a charge in some form upon the public treasury; 
admitting the probability that the language of the treaty of 1835 has 
misled many present purchasers and holders of these reservations ; 



iimiiMiiiiiiiiiiii 



8 CHEROKEE RESERVATIONS. 

considering that the same views of public justice and policy which in 
1835 dictated an idemnity from the public treasury to the tenants of 
the life estate forced to abandon by State laws, now dictate a simi- 
lar indemnity to the dispossessed reversioners in fee simple ; and con- 
sidering, finally, that it is not easy to escape such a construction of 
the thirteenth article of the treaty of 1835 as would make the indem- 
nification of those reversioners a matter of strict treaty obligation, 
your committee have concluded to report the accompanying bill. 

In arranging the details of this bill, your committee have not only 
followed the precedent of the treaty of 1835 in fixing the powers of the 
commission proposed to be created, but have had in view the necessity 
of providing a certain, prompt, and unconditional extinguishment of 
the right of the children of these life estate reservees. No measure 
short of this will put a stop to the numerous suits, commenced and 
impending, against which the memorialists ask relief. 



MiinnnfiinMifiTHWfBiirfBynimiiimimiiniMMiiiiiiiiiPiiii 



^. 






x* 



i> 



M iiMMymiiiiiiMi iii i iii i i mi"'"*"'"'^inim iiriniii r iiriiii» i ii inwi i iii iiii w ii wm rifinniin nniw niirrii n iiiMMiiiii m iimi 



TfctC^"'^ ' 





^< 



>P^^. 




4 o^ 







,^ . , . 





\^ 





















' O N O 



^oV" ,°^^^ 



■^^ * 




0* 








'-^0^ 
,-^9. 



v^ 



A"^ /. 








,-^ - 



o. V 



V ".rv -■ , ., .;.. ,\V! <V '^ 




.^"^ /.<^i^.^a:^. u ^^ ^^^ 







K- .'-"' 










„<^^ 

















-kyj-^ 



v^. 






5 • 



A. 



?•• 



0'' 




■;.,^^,^ /^^.-.^ 



4^s ■■ <J^Cy> « 



A''' 










> 










V-^' 



M .\^ ,.. "-^ °"" >^' 

"" f „.. V "^* .^^^ .. °^ *^^^ ^0^ ^<?^ ^ 




DOBBS BROS. i> 

LIBRARY BINDING O 






>°V, 







%/ -mM. *^..** /.^M\ v,/ .4¥a\ %. .^ 



ST. AUGUSTINE "y^^ 

^"^"^ FLA. V ''- 



J2084 



A. 












^. 






.'^'^ . o « » . ^-^^ 



